Before the Civil Liberties Committee vote: will reason win?

Melancholia
Will LIBE kill the filter?
Licentie

After a few postponements, the vote at the LIBE Committee on their opinion on content filtering article is finally happening today. Given the variety of amendments tabled by its members, it is understandable that the MEPs took their time in negotiating common ground. Unfortunately the deletion of article 13 was not an option for the Civil Liberties Committee. So what would be the next best outcome of the vote?

The peculiar fate of LIBE’s draft opinion

LIBE was the last Committee to be granted a right to release an opinion on the current copyright dossier. Following the Committee mandate, it will only opine on article 13 and corresponding recitals as the ones having implications on fundamental rights and privacy of users. In his decent draft opinion, rapporteur Michal Boni stepped away from the content filtering obligations and tried to clean up the mess the European Commission had left MEPs to deal with regarding intermediary liability.

That probably didn’t help him make more friends within the European People’s Party, his own group that in part supports the filtering obligation. However, in a surprising twist of events, Boni’s draft was adopted as part of the final opinion of the Internal Market and Consumer Protection Committee, instead of the compromise language proposed by rapporteur Catherine Stihler and some truly horrific alternative ideas on how to make filtering great again authored by some Committee members.

A compromise by popular demand

This move gave some prominence to the draft, probably a bit more than it needed from the perspective of the LIBE Committee workflow. We can only suspect that the backers of content filtering as the go-to solution to enforcing copyright did not like the fact that a proposal deprived of it gained traction in the Committee where the rapporteur has a seat during JURI Shadows’ meetings. It is quite possible that the rescheduling of the vote had to do with the fact that the draft opinion has as many fans as it has enemies.

But the key is that, as imperfect as it is, it truly represents a compromise between the extremities of the “delete” and “make platforms liable for all the content they host and make available” positions. That is, if compromise is understood not as an exercise in survival of the fittest in negotiating, but a genuine effort to give everyone something. The rightholders would have their special provision on the perceived value gap, the users would be able to post without a fear to be censored preventively, and the platforms would be liable only in the cases envisioned in the e-Commerce Directive.

When we look at it this way, it becomes clear why IMCO saw the LIBE draft as a way to reconcile various sides of the debate. It would be good if, given the array of positions presented by its members, the LIBE Committee also decide that language of the draft opinion written by MEP Boni that way.

There is also another definition of compromise that says it is the art of making everybody equally unhappy. Rapporteur Boni’s version of article 13 will achieve exactly that. It is hard to speak for the rightholders, but as far as the users go, this is the amount of misery we can live with sharing and communicating online.

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